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[TenantNet]

One Convent Ave. Realty Corp. v Earley
2007 NYSlipOp 27541
Decided on December 28, 2007
Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

Decided on December 28, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKEON, P.J., DAVIS, SCHOENFELD, JJ
570841/05.

One Convent Avenue Realty Corp., Petitioner-Landlord-Respondent,

-- against --

Delores Earley and Charles Earley, Respondents-Tenants-Appellants.

Tenants appeal, and landlord cross appeals, from an order of the Civil Court of the City of New York, New York County (Timmie Erin Elsner, J.), entered on or about September 14, 2005, after a hearing, which granted landlord's motion to execute a warrant of eviction in a holdover summary proceeding.

Per Curiam.

Order (Timmie Erin Elsner, J.), entered on or about September 14, 2005, reversed, without costs, motion denied and warrant of eviction vacated.

In settlement of a holdover summary proceeding based upon the tenants' alleged failure to provide landlord access to their stabilized apartment for extermination and inspection, the parties entered into a so-ordered stipulation, dated May 8, 2003, which awarded a possessory judgment to landlord. The parties agreed that the eviction would be stayed for a period of two years and the possessory judgment thereafter vacated, provided, inter alia, that tenants "not contact DHPD, DHCR and/or any other agency or forum with respect to repairs and/or conditions in the [apartment] and/or the subject building." On or about April 25, 2005, less than two weeks prior to the expiration of the stipulation's probationary period, landlord moved to execute on the warrant, alleging, as relevant herein, that tenants "contacted Rita Wilson of the Davidson Senior Center to complain about Petitioner's alleged failure to serve Respondent[s] with a renewal lease."

Even putting aside the public policy concerns raised by the stipulation's ban on tenant initiated complaints over "housing repairs and/or conditions" (compare D'Agostino v Forty-Three East Equities Corp., 16 Misc 2d 59 [2007]), the conduct attributed to the long-term elderly tenants did not constitute a violation of the stipulation as written. Applying the principle of ejusdem generis (see 242-44 East 77th St., LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100, 103-104 [2006]), we find that the senior citizen center here involved — so far as known, a private, community-based, eleemosynary organization — is not the type of "agency or forum" contemplated by the stipulation's terms, since it is not at all like the housing-related, governmental agencies listed in the stipulation. Moreover, tenants' conduct in voicing a complaint concerning the absence of a renewal lease - the sole violation cited by landlord in [*2]seeking tenants' eviction - did not relate to apartment-specific or building-wide "repairs or conditions" within the meaning of the stipulation. To the extent that the hearing evidence went beyond the narrow allegations set forth in landlord's moving papers, it does not constitute a proper basis for eviction.
Landlord's cross appeal, not having been briefed, is deemed abandoned.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: December 28, 2007

[Emeraldstar]

Hi All
Bravo!! Well done Delores & Charles!!
OMIG and that fellow posters is the essence of tenant harassment, as well as violating their freedom of speech rights.